Case summaries
In order to assess the change of circumstances where refugee status ceased to exist, the competent authorities must “verify, having regard to the refugee’s individual situation, that the actor or actors of protection[…], which may include international organisations controlling the State or a substantial part of the territory of the State, including through the presence of a multinational force in that territory, have taken reasonable steps to prevent persecution, that they therefore operate, in particular, an effective legal system for the detention, prosecution and punishment of acts constituting persecution and that the national concerned will have access to such protection if he ceases to have refugee status”.
An Ethiopian man was considered eligible for protection as a refugee due to his involvement in the government-hostile OLF guerilla group, which has been declared a terrorist organisation.
In cases concerning countries which are not democratic and secure decision-makers must not only look to ratified international treaties as evidence of the human rights situation. It is necessary to examine carefully how international obligations and the legal system as a whole are applied in practice.
If an applicant for international protection has citizenship of one country and a place of last permanent residence in another country, the assessment of persecution or serious harm is considered primarily with regard to the country of nationality. The country of last permanent residence is examined in cases of stateless persons.
The Applicant fled to Austria to be with her husband. She pleaded no reasons for fleeing such as problems of living as a woman in Afghanistan and the Federal Asylum Agency also made no investigations into this aspect. Only in the appeal were specific women’s issues raised. The Asylum Court decided that the Federal Asylum Agency was obliged to undertake the appropriate investigations under apparent theoretical circumstances relevant to asylum (such as gender), even if the party did not initiate such a submission.
The Administrative Court considered the proposed removal of the applicant from the UK to Italy under the Dublin Regulation. In applying MSS v Belgium and Greece and KRS v UK to applications to resist removal under the Dublin Regulation on human rights grounds, a system which protects the rights of asylum seekers should be presumed in other EU member states. The evidence must reveal a systemic failure on a significant scale for the presumption to be rebutted. Particular weight would be given to the public statements of UNHCR and other intergovernmental bodies with appropriate mandates. Little or no weight would usually be given to expert reports in such cases.
When establishing the necessary “density of danger” in an internal armed conflict within the meaning of Section 60 (7) (2) Residence Act/Art. 15 (c) Qualification Directive, it is not sufficient to quantitatively determine the number of victims in the conflict. It is necessary to carry out an “evaluating overview” of the situation, which takes into account the situation of the health system. However, this issue was not decisive in the present case, as the applicant would only face a low risk of being seriously harmed.
Appeal against the General Secretary of the Ministry of Public Order's negative decision no 95/52986 of 28.4.2006 on a claim for asylum before the Appeal Committees formed pursuant to Articles 26 & 32 of Presidential Decree 114/2010 and the Minister of Citizen Protection's decision 5401/3-505533 of 7.11.2011 (385/8-11-2011 FEK YODD) pursuant to which the present Committee was formed.
This case involved a fear of persecution because of religious beliefs (atheism) as well as because of membership of a particular social group (personality shaped in a non-Islamic society / westernisation). In particular, the Committee ruled that if the Applicant were to return to Afghanistan now or in the near future, because of his atheism and the consequent non-conformity with the Islamic way of life of the society into which he would need to integrate, in conjunction with the fact that his personality has been shaped in a non-Islamic society with customs and a way of life totally different from those of Muslims, he would be reasonably likely to suffer aggressive social attitudes, threats and social exclusion which, taken cumulatively, could amount to persecution. Besides, should he return to a small rural community in Afghanistan – given the Applicant's particular personality and how it had been shaped – it is very likely that he would not be able to conceal his religious beliefs (atheism) and thus there was a reasonable chance that he would be at risk of criminal prosecution because of his atheism and his 'apostasy' from Islam (prosecution which is reasonably likely to lead to imprisonment or execution). This, however, would constitute a direct and severe violation of his fundamental right to religious freedom, especially in the context of the specific social, religious and political unrest and the absence of legal guarantees in the Applicant's country of origin.
It was held that even if he were not criminally prosecuted, the Applicant would, in any case, be at risk of suffering harm from non-state actors in the form of persecution; and that the Afghan State, police and other authorities were incapable of providing adequate and effective protection, mainly because of the lack of organisation and the corruption which prevails at all levels.
The refusal to grant a right of residence to a third-country national who is a family member of a Union citizen must not lead in fact to the obligation for the latter to leave the territory not only of the Member State of which he is a national but also that of the Union as a whole.
Saudi Arabia is not considered a safe third country for non-Saudi nationals.